27. States should develop and implement national plans to progressively realize universal access to comprehensive
treatment, care and support for all persons living with HIV, as well as universal access to a full range of goods, services and information for HIV prevention. National plans should be developed in consultation with non-governmental
organizations to ensure the active participation of people living with HIV and vulnerable groups.
28. Universal access to HIV prevention, treatment, care and support is necessary to respect, protect and fulfil human rights related to health, including the right to enjoy the highest attainable standard of health. Universal access will be achieved progressively over time. However, States have an immediate obligation to take steps, and to move as quickly and effectively as possible, towards realizing access for all to HIV prevention, treatment, care and support at both the domestic and global levels. This requires, among other things, setting benchmarks and targets for measuring progress.19
29. Access to HIV-related information, goods and services is affected by a range of social, economic, cultural, political and legal factors. States should review and, where necessary, amend or adopt laws, policies, programmes and plans to realize universal and equal access to medicines, diagnostics and related technologies, taking these factors into account. As one example, duties, customs laws and value-added taxes may hinder access to medicines, diagnostics and related technologies at affordable prices. Such laws should be revised so as to maximize access.
States should ensure that national laws, policies, programmes
19 For example, States could make use of the indicators developed by UNAIDS for measuring follow-up on the United Nations General Assembly’s 2001 Declaration of Commitment on HIV/AIDS, in particular the National Composite Policy Index, which assesses a country’s progress in developing laws, policies and strategies to address HIV and AIDS at the national level in relation to prevention, treatment, care and support, as well as specific human rights issues.
and plans affecting access to HIV-related goods, services or information are consistent with international human rights norms, principles and standards. States should consider the experience and expertise of other States, and consult with people living with HIV, non-governmental organizations, and domestic and international health organizations with relevant expertise.
30. States should also ensure that their laws, policies, programmes and practices do not exclude, stigmatize or discriminate against people living with HIV or their families, either on the basis of their HIV status or on other grounds contrary to international or domestic human rights norms, with respect to their entitle-ment or access to health-care goods, services and information.20 31. States’ legislation, policies, programmes, plans and practices
should include positive measures to address factors that hinder the equal access of vulnerable individuals and populations to prevention, treatment, care and support, such as poverty, migra-tion, rural location or discrimination of various kinds.21 These factors may have a cumulative effect. For example, children (particularly girls) and women may be the last to receive access even if treatment is otherwise available in their communities.
20 See also Guideline 5, above, regarding protections against discrimination, including in areas such as health care, social security, welfare benefits and other services.
21 Depending on legal, social and economic conditions, which may vary widely within countries and across regions, individuals and groups that may be vulnerable to discrimination and marginalization include women, children, those living in poverty, indigenous people(s), gay men and other men who have sex with men, migrants, refugees and internally displaced persons, people with disabilities, prisoners and other detained persons, sex workers, trans-gender people, people who use illegal drugs, and racial, religious, ethnic, linguistic or other minorities. See also: Guideline 3, paragraph 20 (j), and Guideline 10, paragraph 64 (a), on measures to address discrimination in the provision of health care; Guideline 4, paragraph 21 (e), on the specific issue of access to HIV-related prevention, treatment and care for pris-oners; and Guideline 8, paragraphs 60 (b) and 60 (j), regarding specific attention to the needs of vulnerable groups.
32. States should recognize, affirm and strengthen the involvement of communities as part of comprehensive HIV prevention, treatment, care and support, while also complying with their own obligations to take steps in the public sector to respect, protect and fulfil human rights related to health. Mechanisms should be developed to enable affected communities to access resources to assist families who have lost income earners to AIDS. Particular attention must be paid to gender inequalities, with respect to access to care in the community for women and girls, as well as the burdens that delivering care at the community level may impose on them.
33. To assist caregivers and, where relevant, employers and insurers, States should ensure the availability, use and implementation of sound, scientifically up-to-date guidelines for prevention, treat-ment, care and support to people living with HIV in respect of available health-care goods, services and information. States should develop mechanisms to monitor and improve, as neces-sary, the availability, use and implementation of these guidelines.
34. Legislation, policies and programmes should take into account the fact that persons living with HIV may recurrently and pro-gressively experience ill-health and greater health-care needs, which should be accommodated accordingly within benefit schemes in both the public and private sectors. States should work with employers, and employers’ and workers’ organiza-tions, to adopt or adapt benefit schemes, where necessary, to ensure universal and equal access to benefits for workers living with HIV. Particular attention must also be paid to ensuring access to health care for individuals outside the formal employ-ment sector, who lack work-related health-care benefits.22
22 See also Guideline 5, paragraph 22 (d), and the Code of practice on HIV/AIDS and the world of work, adopted in 2001 by the International Labour Organization.
35. States should ensure that domestic legislation provides for prompt and effective remedies in cases in which a person living with HIV is denied or not provided access to treatment, care and support. States should also ensure due process of law so that the merits of such complaints can be independently and impartially assessed. At the international level, States should strengthen existing mechanisms, and develop new mechanisms where they do not currently exist, enabling persons living with HIV/AIDS to seek prompt, effective redress for breaches of States’ international legal obligations to respect, protect and fulfil rights related to health.
36. States should ensure the quality assurance and control of HIV-related products. States should ensure, through legislative and other measures (e.g. functional systems for pre-marketing approval and post-marketing surveillance), that medicines, diagnostics and related technologies are safe and effective.
37. States should take legislative and other measures to ensure that medicines are supplied in adequate quantities and in a timely fashion, and with accurate, current and accessible information regarding their use. For example, consumer protection laws or other relevant legislation should be enacted or strengthened to prevent fraudulent claims regarding the safety and efficacy of drugs, vaccines and medical devices, including those relating to HIV.
38. Laws and/or regulations should be enacted to ensure the quality and availability of HIV tests and counselling. If home tests and/or rapid HIV test kits are permitted on the market, they should be strictly regulated to ensure quality and accuracy.
The consequences of loss of epidemiological information, the lack of accompanying counselling and the risk of unauthorized
use, such as for employment or immigration, should also be addressed. Legal and social support services should be established to protect individuals from any abuses arising from HIV testing. States should also ensure supervision of the quality of delivery of voluntary counselling and testing (VCT) services.
39. Legal quality control of condoms should be enforced, and compliance with the International Condom Standard should be monitored in practice. Restrictions on the availability of preventive measures, such as condoms, bleach, clean needles and syringes, should be repealed. Widespread provision of these preventive measures through various means, including vending machines in appropriate locations, should be considered, in light of the greater effectiveness provided by the increased accessibility and anonymity afforded by this method of distribution. Condom promotion initiatives should be coupled with HIV information campaigns for optimal impact.
40. Laws and/or regulations should be enacted to enable
widespread provision of information about HIV through the mass media. This information should be aimed at the general public, as well as at various vulnerable groups that may have difficulty in accessing information. HIV information should be effective for its designated audience and not be inappropriately subject to censorship or other broadcasting standards,
particularly as this will have the effect of damaging access to information vital to life, health and human dignity.
41. In order to improve prevention and therapeutic options related to HIV, States should increase funds allocated to the public sector for researching, developing and promoting therapies and technologies for the prevention, treatment, care and support of HIV and AIDS and related infections and conditions. The
private sector should also be encouraged to undertake such research and development and to make the resulting options widely and promptly available at prices affordable to those who need them.
42. States and the private sector should pay special attention to supporting research and development that address the health needs of developing countries. In recognition of the human right to share in scientific advancement and its benefits, States should adopt laws and policies, at the domestic and international levels, ensuring that the outcomes of research and development are of national and global benefit, with particular attention to the needs of people in developing countries and people who are poor or otherwise marginalized.
43. States should integrate HIV prevention, treatment, care and support into all aspects of their planning for development, including in poverty eradication strategies, national budget allocations and sectoral development plans. In so doing, States should have particular regard, at a minimum, for internationally agreed targets in addressing HIV.23
44. States should increase their national budget allocations for measures promoting secure and sustainable access to affordable HIV prevention, treatment, care and support, at both the domestic and international levels. States should, among other steps, make contributions, in proportion to their resources, to mechanisms such as the Global Fund to Fight AIDS, Tuberculosis and Malaria. Developed countries should make concrete commitments of increased official development
23 Examples include the Millennium Development Goals agreed in 2000 by the United Nations General Assembly, and the specific HIV/AIDS-related goals agreed in the United Nations General Assembly’s Declaration of Commitment on HIV/AIDS in 2001.
assistance that will move them without delay towards meeting international targets to which they have agreed, paying particular attention to assistance in realizing access to health-care goods, services and information.24
45. States should ensure that international and bilateral mechanisms for financing responses to HIV/AIDS provide funds for prevention, treatment, care and support, including the purchase of antiretroviral and other medicines, diagnostics and related technologies. States should support and implement policies maximizing the benefit of donor assistance, including policies ensuring that such resources are used to purchase generic medicines, diagnostics and related technologies, where these are more economical.
46. States’ international and bilateral financing mechanisms should also provide funding for strengthening health-care systems, for improving the capacity and working conditions of health-care personnel and the effectiveness of supply systems, for financing plans and referral mechanisms to provide access to prevention, treatment, care and support, and for family, community and home-based care.
47. States should collaborate with non-governmental organizations, intergovernmental organizations, and United Nations
bodies, agencies and programmes in creating, maintaining and expanding international, publicly accessible sources of information on the sources, quality and worldwide prices
24 For example, in their 2001 Declaration of Commitment on HIV/AIDS, all United Nations Member States urged developed countries that have not done so to meet, as soon as possible, the long-standing target of dedicating 0.7% of their gross national product to overall official development assistance and earmarking 0.15–0.20% of their gross national product as official development assistance for least developed countries. States formally reiterated this call in the outcome document of the 2002 International Conference on Financing for Development (Monterrey, Mexico).
of medicines, diagnostics and related technologies for the preventive, curative and palliative care of HIV and AIDS and related opportunistic infections and conditions.25
48. Creditor countries and international financing institutions should implement debt relief for developing countries more quickly and extensively, and should ensure that resources provided for this purpose do not detract from those made available for official development assistance. Developing countries should use the resources freed up by debt relief (as well as other sources of development finance) in a manner that fully takes into account their obligations to respect, protect and fulfil rights related to health. States should, among other things, dedicate an appropriate proportion of such resources, in the light of domestic conditions, priorities and internationally agreed commitments, to HIV prevention, treatment, care and support.
49. States should support and cooperate with international mechanisms for monitoring and reporting on the measures they have taken for progressively realizing access to
comprehensive HIV prevention, treatment, care and support, including antiretroviral and other medicines, diagnostics and related technologies. States should include relevant information in their reports to bodies monitoring their progress in
complying with their international legal obligations. The data in these reports should be disaggregated in a manner that helps identify and remedy possible disparities in access to
25 For example, UNICEF, UNAIDS, WHO and the non-governmental organization Médecins Sans Frontières jointly produce and update a publication identifying sources and prices of selected drugs and diagnostics used in providing care and treatment to people living with HIV. Similarly, in 2001 the World Health Organization initiated an ongoing project that produces and maintains a list of HIV/AIDS drugs and diagnostics, and their suppliers, who meet WHO quality standards.
prevention, treatment, care and support, and should use existing, or develop new, evaluation tools such as indicators or audits to measure implementation. States should actively involve non-governmental organizations, including those representing people living with HIV/AIDS and vulnerable groups, in preparing such reports and in acting on the observations and recommendations received from such monitoring bodies.26 50. States should pursue and implement international and
regional cooperation aimed at transferring to developing countries technologies and expertise for HIV prevention, treatment, care and support. States should support cooperation between developing countries in this regard, and should join international organizations in providing and supporting technical assistance aimed at realizing access to HIV prevention, treatment, care and support.
51. In their conduct in international forums and negotiations, States should take due account of international norms, principles and standards relating to human rights. In particular, they should take account of their obligations to respect, protect and fulfil rights related to health, as well as of their commitments to provide international assistance and cooperation.27 States should also avoid taking measures that would undermine access to HIV prevention, treatment, care and support, including access to antiretroviral and other medicines, diagnostics and related technologies, either domestically or in other countries, and should ensure that medicine is never used as a tool for political pressure. Particular attention must be paid by all States to the needs and situations of developing countries.
26 See also Guideline 11, for further guidance on State monitoring and enforcement of human rights.
52. States should, in light of their human rights obligations, ensure that bilateral, regional and international agreements, such as those dealing with intellectual property, do not impede access to HIV prevention, treatment, care and support, including access to antiretroviral and other medicines, diagnostics and related technologies.
53. States should ensure that, in interpreting and implementing international agreements, domestic legislation incorporates to the fullest extent any safeguards and flexibilities therein that may be used to promote and ensure access to HIV prevention, treatment, care and support for all, including access to medicines, diagnostics and related technologies. States should make use of these safeguards to the extent necessary to satisfy their domestic and international obligations in relation to human rights. States should review their international agreements (including on trade and investment) to ensure that these are consistent with treaties, legislation and policies designed to promote and protect all human rights and, where those agreements impede access to prevention, treatment, care and support, should amend them as necessary.
GUIDELINE 7: LEGAL SUPPORT SERVICES
54. States should implement and support legal support services that will educate people affected by HIV about their rights, provide free legal services to enforce those rights, develop expertise on HIV-re-lated legal issues and utilize means of protection in addition to the courts, such as offices of Ministries of Justice, ombudspersons, health complaint units and human rights commissions.
55. States should consider the following features in establishing such services:
(a) State support for legal aid systems specializing in HIV casework, possibly involving community legal aid centres and/or legal service services based in ASOs;
(b) State support or inducements (e.g. tax reduction) to private sector law firms to provide free pro bono services to people living with HIV in areas such as anti-discrimination and disability, health-care rights (informed consent and confidentiality), property (wills, inheritance) and employment law;
(c) State support for programmes to educate, raise awareness and build self-esteem among people living with HIV concerning their rights and/or to empower them to draft and disseminate their own charters/declarations of legal and human rights; State support for production and dissemination of HIV legal rights brochures, resource personnel directories, handbooks,28 practice manuals, student texts, model curricula for law courses and continuing legal education and newsletters to encourage information exchange and networking should also be provided. Such publications could report on case law, legislative reforms, national enforcement and monitoring systems for human rights abuses;
27 See also Guideline 11, paragraph 66 (e), regarding promotion of HIV-related human rights in international forums and ensuring their integration into the policies and programmes of international organizations.
28 See J. Godwin (et al.), Australian HIV/AIDS Legal Guide, (2nd edition), Federation Press, Sydney, 1993; Lambda Legal Defense and Education Fund Inc., AIDS Legal Guide: A Professional Resource on AIDS-related Legal Issues and Discrimination, New York.
(d) State support for HIV legal services and protection through a variety of offices, such as Ministries of Justice, procurator and other legal offices, health complaint units, ombudspersons and human rights commissions.